Reconsideration denied July 24, 2014 -- Cert. applied for.
Rape. DeKalb Superior Court. Before Judge Scott.
Gerard B. Kleinrock, for appellant.
Robert D. James, Jr. , District Attorney, Deborah D. Wellborn , Assistant District Attorney, for appellee.
MCMILLIAN, Judge. Phipps, C. J., and Ellington, P. J., concur.
Mackie Omatshola Mowoe appeals following the trial court's denial of his motion for new trial after a jury convicted him of one count of rape. We reverse for the reasons set forth below.
Viewed in the light most favorable to the verdict, the evidence shows that Mowoe and the victim lived on different floors in the same apartment building. The victim lived on the upper floor with her three-year-old daughter and some friends. Mowoe lived on the floor below with a man named Jersey, who had a daughter the same age as the victim's daughter and whom the victim dated for a brief time after moving to the apartment complex. The victim met both men within a few weeks after she moved into the
complex. And on least one occasion, she stayed outside talking with Mowoe, Jersey, and others in the complex parking lot.
On September 12, 2008, Mowoe knocked on the door of the victim's apartment and asked her for help charging his phone. She told him to give her his phone and she would charge it for him, but " he was in the apartment before [she] knew it." Mowoe started grabbing the victim and touching her, but he left when the victim's daughter began to protest his actions.
Later that day, after the victim's daughter left with her grandmother for a visit, the victim was alone in the apartment, and she decided to walk to a nearby restaurant. As she left her apartment, she passed Mowoe sitting on the stairs with another woman. After she passed them, the victim heard someone run up behind her. When she turned around, Mowoe grabbed her around the waist and tried to pick her up and pull her back inside the apartment building. The victim kicked Mowoe in the leg, and when he let her go, she ran to her apartment. She opened the apartment door, but before she could close it, Mowoe was standing in front of her, blocking the door. Mowoe forced his way inside, and the victim ran into her bedroom and locked the door. She heard Mowoe lock the door to her apartment and rummage around the kitchen for a knife, which he used to open the bedroom door. He maneuvered the victim down on the floor, held her hands where she could not move, removed her underwear, and had forcible intercourse with her. During these events, she told him she did not want to have sex and kicked him.
[328 Ga.App. 537] Afterward, the victim found her phone and indicated that she was going to call the police. Mowoe then took away her phone, began to choke her, and slammed her head against the headboard twice. The victim's roommates returned home shortly thereafter, and she ...